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Happy Thanksgiving week,
I thought I’d email you today because I’ll probably leave you alone on Thanksgiving to gather with no more than six people from no more than two households, unless your Thanksgiving dinner is on the streets of Portland and instead of watching football you vandalize businesses in the name but not the spirit of social justice, in which case the sky’s the limit. Plus, there’s a lot of interesting news on the Roundup beat and I just can’t stand the idea of you suffering one more moment without hearing from me about it. You’re welcome.
A serious legal threat to Kate Brown’s freeze
Last week I wrote that I could see no rational basis in the publicly available evidence for Oregon Governor Kate Brown to close restaurants and bars to in-person service, and limit the capacity of retail establishments. The state’s own data show that’s not where transmission is occurring. I used the term “rational basis” on purpose, because that’s the legal standard by which the government can take away someone’s property or treat someone differently than someone else who’s similarly situated (at least in cases in which the distinction is not based on race and other “suspect classifications,” where the standard is a lot higher).
Since the beginning of the pandemic, a lot of people on the right have said that Kate Brown’s and other governors’ orders are unconstitutional because they keep them from doing stuff they want to do. That’s wrong – we don’t have a constitutional right to do whatever we want, and the government can and commonly does limit even those rights that are constitutionally protected. For example, the government can, will and should send you to jail if you exercise your First Amendment right to free speech by calling in a bomb threat to the local school (imagine the unimaginable: there are people in the school).
Similarly, governors have significant police powers to respond to emergencies, even by severely curtailing constitutional rights. In the wildfires this past summer, state and local officials actually forced people from their homes and kept them from coming back. That’s constitutional, and so are most of the things Kate Brown has done since the pandemic, another emergency, began. Especially at the beginning, we didn’t know much about how and where the virus spread, so there was legal lenience toward blanket shutdowns.
The virus is still here, more than ever, but things have changed. Reams of data have been compiled about Covid, and how and where it spreads. According to Oregon’s own data, it spreads primarily in prisons and in private social gatherings in homes. The existence of this data after a fashion shifts the burden onto the state to demonstrate that there is a rational basis for the rights-abridging measures it implements. As I mentioned last week, I don’t see the rational basis for the restaurant, bar and retail closures or limitations, based on publicly available data.
Lo and behold, the Oregon Restaurant and Lodging Association, along with the national Restaurant Law Center filed a lawsuit in the U.S. District Court for Oregon last Friday, alleging, among other things, that the state lacked a rational basis to treat restaurant and bar owners differently than proprietors of other establishments that similarly gather people together subject to social distancing, masking and other requirements. If you’re into reading complaints, here it is.
The plaintiffs asked the court to issue a temporary restraining order (TRO), which would grant immediate relief from enforcement of the order as the lawsuit proceeds. There’s a hearing tomorrow afternoon, before a judge appointed by President Trump. I don’t know how the TRO will turn out (they’re really hard to get), but it would not surprise me one bit if the judge grants it, at least in part.
Bits vs. Atoms update: Deschutes County swung hard toward Biden
As readers will recall, a couple weeks ago, I wrote that one theory explaining the shift in the American electorate in recent years is that Republicans are becoming the party of atoms (or people who work with physical stuff) while Democrats are becoming the party of bits (people who work with information). As more county-level data from the 2020 election is available, the shifts are pretty stark. The summary is that heavily Latino counties in south Texas and Miami-Dade County in Florida were much more pro-Trump in 2020 than 2016. These are predominantly atom, not bit, workers.
The other side of the coin? Deschutes County, Oregon, shifted against Trump more than all but a handful of counties nationwide. More than any other county in the Pacific Northwest. Note that Bend, the biggest city in Deschutes County, as of 2019, had the highest percentage of workers who telecommuted in the country. Atoms don’t telecommute. Just sayin’.
What I’m thankful for
Well, mostly and overwhelmingly, for my family. Our precocious boys, Aiden (6) and Elijah (4) are a constant source of hilarity. Aiden likes watching space documentaries with me and Elijah has taken to sometimes calling me Jeff or Jeffrey, e.g. “Jeff, I’m hungry. Is my breakfast ready?” If I don’t respond immediately it becomes “Jeffrey!” And I’m especially grateful for my wife, Anna, who generally keeps our lives moving in the right direction while I’m thinking about the weird stuff I think about.
I’m also thankful for all of you, dear readers, who for reasons I don’t really understand, read what I’ve written. As you may recall, last week (self citation alert x3!) I asked who was reading the Roundup in the Rift Valley of Kenya. Well, I got a response, which absolutely blew me away. Here it is, shared with permission:
Hi, Jeff!
May name is Kaytie Fiedler, my husband Lance passed away on December 26, 2019 and I am monitoring his emails.
I am the reason why your emails were opened in the Rift Valley of Kenya!
He did not die of Covid – he had a massive stroke while we were vacationing on the island of Kauai. We were married for nearly 34 years, he loved me so well and he was a God-loving conservative.
I ran across your emails while I have been watching his. I have found them fascinating!
Recently I spent 6 weeks in Kenya, I returned home last Thursday the 12th. I am the Executive Director for a non-profit called, Open Arms International. www.OpenArms international.org
I was working with our E.D., in Eldoret, Kenya. I was thrilled to be there, traveling was quite easy and we were able to accomplish a lot of good work. Sadly, our organization had to lay off 34 of our 89 local employees that operate Open Arms Village, a safe haven for 153 orphaned and abandoned children. Due to Covid our funding was dramatically impacted and tragically the unemployment rate was already 75% in Eldoret, where our village is located. It is difficult to see the devastation the pandemic has had on this community. Cases are very low but fear is extremely high. When the pandemic first hit, people were shooting those that were suspected of having Covid and not obeying quarantine orders. So, Governor Brown’s mandates (while extremely frustrating and confusing) are not quite so harsh as what this community has endured.
My other work is as a seasoned conference and meeting planner. I own, Epic Events Global, in West Linn, Oregon. I’ve been planning large scale conferences for 12 years and I have never seen anything like what this pandemic has done to our industry. Hundreds of my colleagues and friends who, like me, were used to traveling half the year, having extremely hectic schedules and timelines, lost their jobs, with zero options for a way to work in an industry that we love.
My first sense that this was real was on February 28 when my client, DocuSign, cancelled a week long conference the night before we were to fly out to San Francisco and start the program. Shocked is not strong enough a word – millions of dollars were lost overnight by DocuSign – and then it started happening with client after client and I am at zero live events for the foreseeable future.
Yes, virtual meetings are a viable option – but we have found that communities love to gather around their people who want their content in person, love to network with likeminded individuals and for those of us who love to plan these experiences, the government has forced us out of our industry for who knows how long?
The inconsistencies in managing Covid, that you point out, are grievous, confusing and are decimating people like me who just want to get back to the work we love to do. Safely, of course, as the ‘science’ is not supporting these drastic measures that are doing more to damage our mental health than keeping the vulnerable safe.
So there’s the back story on who was opening your emails in the beautiful Rift Valley of Kenya!
Thank you, Kaytie, for reaching out. This is a difficult season for many. If you were touched by Kaytie’s story, like I was,, I hope you’ll join me in contributing to Open Arms International. Kaytie tells me that all the proceeds from Roundupper donations will go to providing a good Christmas to the orphaned kids of Eldoret, Kenya.
Now, let’s be thankful, shall we? Despite the unpleasantness of 2020, well summarized in Kaytie’s email, we are extremely fortunate to live in a country in which a system exists to protect our rights, in which government must ultimately make the case for abridging them before a life-tenured judge. America’s greatest contribution to the world is putting into practice, albeit imperfectly, the revolutionary concept that the rights of the governed are superior to the will of the government. That the government may not arbitrarily deprive us of those rights. It is a system that still serves us well, even in this most unusual of years.
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Happy Thanksgiving!
Jeff Eager
For media, speaking and other inquiries, or just to tell me why I’m wrong, email me at jeff@oregonroundup.com.
Read past Oregon Roundup editions
What I do when I’m not rounding up:
EagerLaw PC – A business and real property law firm in Bend, Oregon.
Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.
Waste Alert – Local government monitoring for the solid waste and recycling industry.